Employment law encompasses a range of workplace matters. Employers may not be expert in every aspect of employment law, however should have a solid understanding of their primary obligations and be able to anticipate when a potential problem requires the advice of an expert.
Our commercial legal team has assisted many businesses in preventing, minimising and resolving workplace issues. As with many legal matters, prevention is better than cure. We encourage employers to discuss potential issues frankly and openly with our experienced Lawyers before they escalate.
Most employer / employee relationships are covered by the Fair Work Act 2009 (Cth). The Fair Work Commission is Australia’s national workplace tribunal with jurisdiction to resolve workplace disputes and unfair dismissal claims.
The Act sets out minimum standards of employment known as the National Employment Standards. These relate to maximum weekly hours, flexible working arrangements and parental leave, annual leave, personal/carer’s and compassionate leave, community and long service leave, public holidays, notice of termination and redundancy pay.
The conditions of employment for an employee may be contained in an award, agreement, employment contract or other flexible arrangement, provided they meet the National Employment Standards.
Employees must ensure that they pay correct hourly and penalty rates, overtime and allowances and comply with provisions for superannuation, leave entitlements, work arrangements, paid parental leave and dispute resolution processes.
Employers must maintain detailed records for seven years for each employee noting their ongoing wages, hours worked, superannuation, accrued leave, etc. Employees are entitled to receive a pay slip either electronically or in hard copy, within one business day of receiving their wages.
We encourage employers to implement good record-keeping systems and to maintain written documents for all employee-related matters including employment contracts, work history, changes to conditions, hours and rates of pay, and discussions regarding performance reviews.
Avoiding discrimination in the workplace
Anti-discrimination laws promote equality throughout the workforce and protect individuals against discrimination on grounds of race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnic, national extraction or social origin.
Employers must not take ‘adverse action’ against an employee or prospective employee as a result of that person having any one or more of these attributes. Examples of conduct that constitutes adverse action includes dismissing an employee, refusing to hire an employee, altering an employee’s position and treating an employee less favourably than another.
Various situations may lead to direct or indirect discrimination in the workplace and employers must ensure that workplace policies are reasonable and implemented in a manner that protects an employee from treatment that might be considered discriminative, harsh or unjust.
Termination and unfair dismissal
Termination of employment may occur through voluntary resignation or dismissal by the employer on the grounds of redundancy or for other reasons.
Employees must be provided with written notice when their termination is instigated by the employer unless the employment is terminated due to the employee’s misconduct. The notice period will depend on the length of service of the employee.
An employee is made redundant when the employer no longer requires the employee’s job to be done by any other person, or in the event of the employee’s bankruptcy or insolvency. Subject to the employee’s length of service and type and conditions of employment, the employee must receive redundancy pay.
Employees are protected from being unfairly dismissed – an employer may face an unfair dismissal claim if the purported redundancy is not genuine. A genuine redundancy can be shown by the introduction of new technology which replaces human labour, discontinuance of the business operations, relocation of the business interstate or overseas or the restructuring of an organisation. If the employer cannot show that the redundancy is genuine then there is a risk that an unfair dismissal claim may be made.
An unfair dismissal claim may also result from terminating an employee on the basis of discrimination (as discussed above) or for failing to follow correct procedures, for example, not correctly notifying and providing an opportunity for an employee to respond to a poor performance appraisal.
Each matter will turn on its own circumstances however employees should be vigilant in following mandatory procedures and maintaining written record of discussions, negotiations and performance reviews.
Employees may also make an unlawful dismissal claim if the employment is terminated due to temporary absences related to illness or injury, union membership or participation in union activities, making a complaint or participating in an inquiry or legal proceedings against the employer, absence during parental leave or to take part in a voluntary emergency management activity.
Other matters featuring regularly in employment disputes include:
- recruitment, induction and employment contracts;
- disciplinary measures;
- restraint of trade;
- harassment and bullying;
- workplace safety;
- discerning between contractors and employees.